ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 May 2019 DOCKET NUMBER: AR20170000002 APPLICANT REQUESTS: an upgrade of her general, under honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states that she was discharged from the Army for being gay and that there were no other mitigating circumstances to warrant the discharge that she received. In light of the recent policy changes, she is requesting her discharge be upgraded. 3. A review of the applicant's service records shows: a. She enlisted in the Regular Army on 20 November 1985. She served in Germany from 26 April 1986 to around 30 August 1988. She was promoted to specialist four/E-4 on 1 January 1988. b. On 12 July 1988, the applicant's immediate commander notified her that a discharge action was being initiated against her for homosexual acts in accordance with chapter 15, paragraph 15-3 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) based on engaging in homosexual acts with another female Soldier during February - March 1988. He notified the applicant of her rights. c. The applicant acknowledged receipt of the notification of her proposed discharge action. She subsequently consulted with legal counsel and was advised of the basis for a. the contemplated separation action, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to her. She waived consideration of her case by a board of officers and elected to submit a statement in her own behalf (The statement is not available for the Board to review). Her chain of command recommended approval of the discharge action. d. Consistent with the chain of command recommendation, the separation authority approved the recommended action on 5 August 1988 and ordered the issuance of a General Discharge Certificate. e. She was discharged from the Army on 31 August 1988. Her DD Form 214 shows she was discharged in accordance with chapter 15 of AR 635-200 by reason of engaging, attempting to engage, or soliciting another to engage in homosexual acts9s) with an under honorable conditions characterization of service. She completed 2 years, 9 months, and 11 days of active service. 4. By regulation, a Soldier will be discharged if one or more of the following findings have been made and are approved by the separation authority: * the Soldier has engaged in, attempted to engage in, or solicited another person to engage in a homosexual act or acts * the Soldier has made a statement that he or she is a homosexual or bisexual, or words to that effect * the Soldier has married or attempted to marry a person known to be of the same biological sex 5. The law has since been changed and current standards may be applied to previously separated Soldiers as a matter of equity. When appropriate, Soldiers separated for homosexuality can now have their reason for discharge and characterizations of service changed. For such an upgrade to be warranted, both of the following conditions must be met: * the original discharge was based solely on Don’t Ask Don’t Tell (DADT) or a similar policy in place prior to enactment of DADT * there were no aggravating factors in the record, such as misconduct * BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was warranted. Based upon a change in DoD policy relating to homosexual conduct in the military, the Board concluded that upgrading the characterization of service to Honorable was appropriate. In addition to the applicant’s request, the Board also found that changing the narrative reason for separation, the separation code and the reentry (RE) code was also appropriate to change. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing * characterization of service: “Honorable” * narrative reason for separation: “Secretarial Authority” * separation code: “JFF” * reentry (RE) code: “1” 5/15/2019 X CHAIRPERSON Signed by: I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200, chapter 15 at the time, prescribed the criteria and procedures for the investigation of homosexual personnel and their discharge from the Army. When the sole basis for separation was homosexuality, a discharge under other than honorable conditions could be issued only if such characterization was otherwise warranted and if there was a finding that during the current term of service the Soldier attempted, solicited or committed a homosexual act by using force, coercion or intimidation; with a person under 16 years of age; with a subordinate; openly in public view; for compensation; aboard a military vessel or aircraft; or in another location subject to military control if the conduct had, or was likely to have had, an adverse impact on discipline, good order or morale due to the close proximity of other soldiers of the Armed Forces. In all other cases, the type of discharge would reflect the character of the Soldier’s service. 3. Under Secretary of Defense (Personnel and Readiness) memorandum, dated 20 September 2011, subject: Correction of Military Records Following Repeal of Section 654 of Title 10, U.S. Code, provides policy guidance for Service Discharge Review Boards (DRB's) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to follow when taking action on applications from former service members discharged under don’t ask don’t tell (DADT) or prior policies. a. The memorandum above states that, effective 20 September 2011, Service DRBs should normally grant requests, in these cases, to change the: * narrative reason for discharge to "Secretarial Authority" with a Separation Program Designator (SPD) code of JFF * characterization of the service to honorable * the reentry eligibility (RE) code to an immediately-eligible-to-reenter category b. For the above upgrades to be warranted, the memorandum states both of the following conditions must have been met: * the original discharge was based solely on DADT or a similar policy in place prior to enactment of DADT * there were no aggravating factors in the record, such as misconduct * c. The memorandum further states that although each request must be evaluated on a case-by case basis the award of an honorable or general discharge should normally be considered to indicate the absence of aggravating factors. The memorandum also recognized that although BCM/NRs have a significantly broader scope of review and are authorized to provide much more comprehensive remedies than are available from the DRBs, it is Department of Defense (DOD) policy that broad, retroactive corrections of records from applicants discharged under DADT [or prior policies] are not warranted. Although DADT is repealed effective 20 September 2011, it was the law and reflected the view of Congress during the period it was the law. Similarly, DOD regulations implementing various aspects of DADT [or prior policies] were valid regulations during that same or prior period. Thus, the issuance of a discharge under DADT [or prior policies] should not by itself be considered to constitute an error or injustice that would invalidate an otherwise properly-taken discharge action.